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McCrohan v. Sandulli Grace, P.C.

United States District Court, D. Massachusetts

March 28, 2019

Tara McCrohan by assignment on behalf of Massachusetts Coalition of Police, Local #123 Plaintiff,
Sandulli Grace, P.C., John Becker, and The Massachusetts Coalition of Police, Defendants.



         Tara McCrohan (“Plaintiff”) brings claims against Sandulli Grace, P.C. (“Sandulli Grace”), and John Becker, a lawyer for that firm and against Massachusetts Coalition of Police (“MassCOP”) (collectively “Defendants”). She alleges that Sandulli Grace and Becker committed legal malpractice (Counts I and II), and that Sandulli Grace is vicariously liable for the malpractice of Becker (Count III). She also alleges violations of Mass. Gen. Laws. ch. 93A, § 1 et seq. (Count IV) against Sandulli Grace. In addition, she brings a claim for breach of contract against MassCOP (Count V). All claims are brought by an assignment from Uxbridge Massachusetts Coalition of Police, Local #123 (“Local”). Defendants have moved to dismiss pursuant to Fed. R. Civ. P.12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons stated below, both motions (Docket Nos.15 & 20) are denied.


         The following facts are taken from Plaintiff's complaint (Docket No. 2) and assumed to be true for the purposes of this motion.

         On March 30, 2015, Plaintiff obtained a judgement against Local (“the underlying litigation”). See McCrohan v. Uxbridge Police Association Local 123, 253 F.Supp.3d 385 (D. Mass. 2017). That litigation concerned the publication of a letter by Local in an effort to remove the Uxbridge Chief of Police from office. The letter contained false and defamatory statements about Plaintiff, who was an officer in the department. Local sought MassCOP's approval of the letter prior to its publication. MassCOP told Local to “publish [the letter] if [they thought] it would work in removing the Chief from office.” Local also attempted to contact Sandulli Grace regarding the letter, but Sandulli Grace did not respond. After the letter was published, McCrohan brought suit against Local, and Local requested that MassCOP defend and indemnify them, and MassCOP agreed.

         John Becker, an attorney at Sandulli Grace, P.C. represented Local in the underlying litigation. MassCOP paid for Sandulli Grace's services and exercised control over Sandulli Grace throughout the underlying litigation. Neither Becker, Sandulli Grace, nor MassCOP informed Local of any conflicts resulting from Sandulli Grace's dual role as counsel for Local and MassCOP. Sandulli Grace did not inform Local of possible third-party contribution or indemnification claims until Local was unable to pursue them. After the verdict, Sandulli Grace filed an appeal on Local's behalf but, at MassCOP's direction, did not pursue it, and dismissed the appeal without consulting Local. In addition, when Local obtained new counsel, Sandulli Grace withheld relevant documents from Local's new attorney.

         Standard of Review

         A defendant may move to dismiss, based on the complaint, for a “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “To survive a motion to dismiss, a complaint must … state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937 (2009) (internal citations and quotation marks omitted). The complaint must contain “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

         In evaluating the plausibility of plaintiff's pleading, the court must treat all “non-conclusory factual allegations … as true, even if seemingly incredible.” Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011). While a “paucity of direct evidence is not fatal in the plausibility inquiry”, the court may infer a lack of relevant facts if the complaint omits them. Grajales v. Puerto Rico Ports Auth., 682 F.3d 40, 49 (1st Cir. 2012); O'Brien v. DiGrazia, 544 F.2d 543, 546 (1st Cir. 1976). Determining the plausibility of a claim is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal 129 S.Ct. at 1950.


         1. Legal Malpractice (Counts I, II, and III)

         Plaintiff claims that Sandulli Grace breached its duty of loyalty and duty to practice law in a reasonably prudent and competent manner. Specifically, Plaintiff alleges that Sandulli Grace failed to properly advise Local of conflicts of interest caused by Sandulli Grace's dual representation of Local and MassCOP, did not inform Local of viable third-party claims, and withheld documents critical to prosecuting those third-party claims.

         a. Judicial Estoppel

         Sandulli Grace argues that Plaintiff's malpractice claims should be judicially estopped because they are inconsistent with her position in the underlying litigation. “Judicial estoppel is an equitable doctrine that precludes a party from asserting a position in one legal proceeding that is contrary to a position it had previously asserted in another proceeding.” Blanchette v. School Comm. of Westwood, 427 Mass. 176, 184, 692 N.E.2d 21 (1998); see also Alternative Sys. Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 32-33 (1st Cir. 2004). Judicial estoppel is appropriate where a plaintiff would recover a verdict “that is mutually inconsistent with the judgment [they have] already … obtained.” Otis v. Arbella Mut. Ins. Co., 443 Mass. 634, 648, 824 N.E.2d 23 (2005). Sandulli Grace argues that prevailing in the instant litigation requires Plaintiff to argue that Sandulli Grace “should have presented the case differently or pursued an appeal, ” which is contrary to Plaintiff's success in the underlying litigation. (Docket No. 19, at 6).

         “Because of its equitable nature, the circumstances under which judicial estoppel may appropriately be invoked are probably not reducible to any general formulation of principle.” Otis, 443 Mass. at 640, 824 N.E.2d 23 (internal citations and quotation marks omitted). However, estoppel generally contains “two fundamental … elements: First, the position being asserted … must be ‘directly inconsistent,' meaning ‘mutually exclusive' of, the position asserted in a prior proceeding … Second, the party must have succeeded in convincing the court to accept its prior position.” Otis 443 Mass. at 640-41, 824 N.E.2d 23 (quoting Alternative Sys. Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23 (1st Cir. 2004)). The second factor is clearly satisfied. Plaintiff prevailed in the underlying litigation by convincing the court to accept her prior position.

         The first factor, however, is not met here. Plaintiff does not argue she should not have prevailed in the underlying litigation, or that Sandulli Grace should have argued the underlying litigation differently. Local's position, assigned to Plaintiff, is that the MassCOP was jointly and severally liable with Local for defaming Plaintiff, and that Sandulli Grace failed to adequately advise Local. (Docket No. 26, at 8). A finding that MassCOP was jointly and severally liable for that defamation is not contrary to the underlying judgment. Cf. Sandman v. McGrath, 78 Mass.App.Ct. 800, 804-05 (2011) (holding plaintiff was estopped because claim was “directly contrary” to previous claim).

         b. Third-Party Claims

         Under Massachusetts law, joint liability exists where “two or more wrongdoers negligently contribute to the personal injury of another … so that in effect the damages suffered are rendered inseparable” Feneff v. Bos. & M.R.R., 196 Mass. 575, 581, 82 N.E. 705 (1907). Where joint liability exists, damages may either be shared amongst the joint tortfeasors through contribution, or one tortfeasor may indemnify the other for damages. Mass. Gen. Laws. ch. 231B, § 1 et seq. provides for a right of contribution amongst joint tortfeasors. In addition, a right of indemnification can arise from (1) an express agreement, (2) a contractual right implied by the nature of the relationship between the parties, or (3) “a tort-based right … where there is a great disparity in the fault of the parties.” Araujo v. Woods Hole, Martha's Vineyard, Nantucket S.S. Auth., 693 F.2d 1, 2 (1st ...

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